The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Friday, 8 July 2011

Friday afternoon - roundup of some recent legal items

British Tanks leave Basrah

Even leaving aside stories such as the "can of worms" story concerning "phone hacking", the News of the World and the Murdoch media empire, this has been a fascinating week with a wealth of items. Here is pot-pourri of other items:

Human Rights: Territorial application

The European Court of Human Rights - Grand Chamber - has decided two cases concerning the liability of the United Kingdom under the European Convention on Human Rights at the time when the UK was the occupying power in Basrah, Iraq. See Al-Skeini v UK and Al-Jedda v UK. The court ruled that from 1st May 2003 to 28th June 2004, the UK had jurisdiction under Article 1 of the Convention in respect of civilians killed during security operations carried out by British troops in Basrah. In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah. Excellent coverage of these case is on the UK Human Rights Blog. The judgment of Judge Giovanni Bonello is of particular interest and will, without doubt, be an extreme irritant to some politicians in London - "Those who export war ought to see to the parallel export of guarantees against the atrocities of war." Judge Bonello has now retired and this seems to be his "parting shot." A further article is in the Solicitor's Journal.

The Supreme Court: a decision on "care / medical resources" available to stroke victim:

The UK Supreme Court decided McDonald v Royal Borough of Kensington and Chelsea [2011] UKSC 33 - see Judgment and Press Release. The case concerned a stroke victim and her care needs at home. It was a 4:1 majority decision in favour of Kensington and Chelsea with Lady Hale being the dissenter. As the Head of Legal Blog says - "Not only is this an emotive issue – the judgment is fascinating because of the harsh criticism aimed by some of the majority Justices against their dissenting member, Lady Hale."

Adoption: Martin Narey becomes Ministerial Adviser:

On Tuesday 5th July, The Times published a report prepared for the newspaper by Martin Narey (a former Chief Executive of Barnardo's) - The Narey Report on Adoption: Our blueprint for Britain's lost children." The report challenges a lot of the "received wisdom" which pervades this area of practice - e.g. the view that, at almost any cost, the relationship between birth mother and child must be maintained or the opinion, adopted by some practitioners, that there is a need to balance the interests of the child with those of its parents. Such a "balancing exercise" is not actually the position taken by the Children Act 1989 s.1 which states that the welfare of the child is the court's paramount consideration when considering any question concerning the upbringing of a child. Narey goes further and points out that many practitioners, managers and politicians, as well as parts of the media, have strongly held views about the negative consequences of a decision to take a child into care: best summarised as a belief that however bad things are at home, local authority care makes things worse. It is highly likely that we will hear much more of this given that Mr Narey has been appointed as Ministerial Adviser on Adoption.

Judicial Appointments:Diversity; Elitism and do we use judges properly

The House of Lords Constitution Committee continues to look at the Judicial Appointments process. It is reported that Parliament could scrutinise judicial appointments. Comments continue to the effect that the judiciary is insufficiently diverse (too white, too male) or that it is "elitist" (e.g. far too many Oxbridge graduates etc) - see One Page News. This is likely to become a very big issue with the inherent danger that judicial standards might be reduced. The prime requirement should be to get the best possible judges - people with absolute integrity as well as legal ability and knowledge.

In an article - "What's wrong with elitism?" - on Lawyer Watch, Professor Richard Moorhouse of Cardiff University argues that the legal professions (rightly) seek excellence, but they create indicators of excellence based on achievement rather than ability. It’s an understandable approach but it is a flawed one.

Of course, one wonders whether the escalating costs of going through University, qualifying in the law and building a career are likely to be so prohibitive in the future that a vast swathe of potential legal talent will never see light of day. Costs might already be operating as a deterrent to many and CharonQC has noted that take up for the Legal Practice Course (LPC) offered by some providers has already fallen - "The battle for law students begins: not surprisingly."

As legal aid is cut, are we now seeing the courts becoming almost entirely accessible only to very rich claimants whilst, at the same time, the lawyers practising in those courts will, in the future, be coming only from the richest families?

When a judge is appointed, it does not necessarily follow that the appointee's expertise, acquired over many years of legal practice, is utilised as well as it might. The Law Society Gazette 7th July published "Choosing the right judges" gives the example of Recorders. These appointments are the first rung for some on the judicial ladder and they are frequently selected from the ranks of civil and commercial lawyers but are then expected to try criminal cases in the Crown Court with only minimal training. Similarly, life-long criminal or family lawyers promoted to the Court of Appeal are expected to get to grips with civil and commercial cases way outside their comfort zones.

..... and, finally, if you have still not had enough there is always THE BUNDLE published by The Guardian.